I have just the newspaper today and was shocked to read that a retired federal judge can show such disrespect for the contitution. Gopal Sri Ram was wrong on all counts and his statement is not based on both the written constitution of Sabah as well as the judgement of the case in Perak, both of which should have similar constitutions.
There is no requirement for a vote of confidence in the constitution. The UK constitution is also similar to our constitutions but the Sabah and Perak constitutions do not have the vote of confidence part.
In UK, it is automatic, following a General Election but when the Parliament is in sessions, a vote of confidence is required.
Gopal Sri Ram and other lawyers who are trained in UK may have used the UK constitution as a reference but even in UK, there is no need for a vote of confidence just after the election.
We can also argue that just after the election and before the first Parliamentary session, a vote of confidence is not necessary, even after the appoint of a new Prime Minister. Otherwise, it will be a mockery to the requirement of a Prime Minister that has the confidence of the majority of the elected members.
There is no such clause for a vote of confidence our constitutions. It does not mean that during a session, a vote of confidence cannot be requested, but in Sabah and Perak constitutions, anytime the TYT or Sultan deemed that the CM no longer has the confidence of the state assembly, the CM loses his position automatically and he is obliged to appoint a new one.
So beware of the statements made by lawyers and even retired judges.
https://sabahlaw.com/const.html
6. State Cabinet.
(1) There shall be a State Cabinet to advise the Yang di-Pertua
Negeri in the exercise of his functions.
(2) The Cabinet shall consist of a Chief Minister, and not more than
ten nor less than four other members, (to be styled "Ministers")
appointed in accordance with clause (3).
(3) The Yang di-Pertua Negeri shall appoint as Chief Minister a
member of the Legislative assembly who in his judgment is likely to
command the confidence of a majority of the members of the Assembly and
shall appoint the other members mentioned in clause (2) in accordance
with the advice of the Chief Minister from among the members of the
Assembly:
Provided that if an appointment is made while the Legislative
Assembly is dissolved a person who was a member of the last Assembly
may be appointed but shall not continue to hold office after the first
sitting of the next Legislative Assembly unless he is a member thereof.
...
7. Tenure of office of members of Cabinet.
(1) If the Chief Minister ceases to command the confidence of a
majority of the members of the Legislative Assembly, then, unless at
his request the Yang di-Pertua Negeri dissolves the Assembly, the Chief
Minister shall tender the resignation of the members of the Cabinet.
(2) A member of the Cabinet may at any time resign his office by
writing under his hand addressed to the Yang di-Pertua Negeri, and a
member of the Cabinet other than the Chief Minister shall also vacate
his office if his appointment thereto is revoked by the Yang di-Pertua
Negeri acting in accordance with the advice of the Chief Minister.
(3) Subject to clauses (1) and (2), a member of the Cabinet other
than the Chief Minister shall hold office at the pleasure of the Yang
di-Pertua Negeri.
...
https://m.malaysiakini.com/news/424586
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Lesson from Perak
In the case of Datuk (Datu) Amir Kahar Tun Datu Haji Mustapha v. Tun
Mohd Said Keruak & 8 Ors [1995] 1 CLJ 184, the High Court held that
“the evidence that a chief minister ceases to command the confidence of
the majority of members of the assembly for the purpose of Article 7(1)
of the Sabah constitution, may be found from other extraneous sources
than to be confined to the votes taken in the legislative assembly
provided that, that extraneous sources are properly established”.
In that case, such sources were by petitions by the 30 members to the
Yang di-Pertua Negeri and by Pairin Kitingan’s own admission that he
had lost the confidence of the majority.
A similar scenario also played out in the Perak constitutional
crisis. Nizar Jamaluddin of Pakatan Rakyat had been appointed the chief
minister. Three Pakatan Rakyat assemblypersons then defected to Perak
BN. Instead of resigning, Nizar Jamaluddin requested the Perak sultan to
dissolve the Perak state legislative assembly to pave way for fresh
elections.
Sultan Azlan Shah (above) refused to do so and appointed
Zambry Kadir from Perak BN as chief minister instead. Nizar Jamaluddin
filed an action in court and argued that an expression of loss of
confidence can only be determined by a vote in the state legislative
assembly, not on the sultan’s own judgment and discretion.
The Federal Court in Dato' Seri Ir Hj Mohammad Nizar Jamaluddin v
Dato' Seri Dr Zambry Abdul Kadir; Attorney General (Intervener) [2010] 2
CLJ 925 interpreted Article XVI(6) of the Perak state constitution
(similar to Article 7(1) of the Sabah State Constitution) and held as
such: “…evidence of loss of confidence in the MB may be gathered from
other extraneous sources provided, as stated in Akintola, they are
properly established. Such sources, we think, should include the
admission by the MB himself and/or representations made by members of
the assembly that the MB no longer enjoys the support of the majority of
the members of the assembly.”
Thus, to answer Question 1, the Yang di-Pertua Negeri is capable of
determining himself that Musa Aman had lost the confidence of the
majority – it need not be expressed by a vote in the Sabah state
legislative assembly.
As for Question 2, the Federal Court in Nizar Jamaluddin held:
“Similarly here, on the literal interpretation of Art. XVI(6), we are of
the view that the word 'shall' should be given a mandatory effect.
Therefore, it is incumbent upon the appellant in the circumstances of
this case to tender the resignation of the executive council. The term
Executive Council by definition includes the MB. (See art. XVI(2)).
“We, therefore, agree with the respondent that the refusal on the
part of the appellant to resign after having been directed to do so by
HRH clearly went against the express provisions of Art. XVI(6). It
cannot be the intention of the framers of the state constitution that in
the circumstances, it is open to the appellant whether to resign or to
stay on as MB.
“The word 'shall', in our opinion, ought to be given a mandatory
effect, otherwise, it would lead to political uncertainty in the state.
The appellant cannot continue to govern after having lost the support of
the majority. To allow him to do so would be going against the basic
principle of democracy.”
In short, once the Yang di-Pertua Negeri accepts in his own judgment
that Musa Aman has lost the confidence of the majority, and has further
asked him to resign, Musa Aman and his cabinet are legally deemed to
have resigned with immediate effect.
As such, there was no chief minister and cabinet before Shafie Apdal’s appointment on May 12.
As night follows day, Shafie Apdal is therefore constitutionally and legitimately appointed as Sabah chief minister.
LIM WEI JIET is an advocate and solicitor of the High Court of Malaya
and deputy chair of the Bar Council's constitutional law committee.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.
https://www.parliament.uk/documents/commons-committees/political-and-constitutional-reform/The-UK-Constitution.pdf
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8
THE EXECUTIVE
6
THE PRIME MINISTER
The Prime Minister is the Head of the United Kingdom Government.
The Head of State appoints as Prime Minister the member of the House of Commons who can command the confidence of the House of Commons.
The Prime Minister remains in office until either:
Following a General Election, the Prime Minister is no longer
able to command the confidence of the House of Commons, or
The Government loses a vote of no confidence in the House
of Commons and a replacement government cannot be found
within 14 days, or The Prime Minister resigns.
Possible alternative:
Tuesday, 15 May 2018
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